Thursday, February 16, 2006

The Defamer

Legal issue of the day: When are publicized complaints defamatory?

From the New York Times:

Manny from Miami is not quite the sensitive single man he says he is. He is married with a kid, no less, and "he sleeps with women everywhere," according to his anonymous former girlfriend in a posting on

As for Vincent of Jacksonville, his ex said she answered a knock at her door one day only to find his wife and his mistress had come calling. The two, having found out about each other, "don't mind teaming up to get rid of the next girl," the ex-girlfriend said in her posting. "Whatever you do, don't date him, don't speak, just move on."

And Michael, the 23-year-old from England? "He only cares about himself and how many notches there are on his bedpost," reported one of the women he counted as a notch. "Ultimately, he'll end up sad and lonely. Probably with a hefty bout of gonorrhea."

Unearthing a potential mate's cheating, thieving, maybe even psychotic ways during the early stages of courtship has always been tricky business. But it is particularly difficult today, when millions are searching for dates online and finding it far easier to lie to a computer than to someone's face.

But the Internet is now offering up an antidote. Web sites like, and are dedicated to outing bad apples or just identifying people who may not be rotten but whose dating profiles are rife with fiction.

Framed in pink, the site allows a woman to post the name and photograph of a man she says has wronged her, along with a short but often pungent synopsis of how precisely she was aggrieved. The suspicious or merely curious can hunt for a cheater by typing a name into the search engine. Women can also send e-mail messages through the site if they want to ask more pointed questions about a particular cad. In a slight nod to fairness, men who disagree with the characterization can write a rebuttal to be posted alongside their names.

But Mr. Tracy cautioned that truth-in-dating Web sites may also be guilty of publicizing falsehoods, and the resulting harm to a man's reputation can be complicated to undo. Writing a rebuttal is effective only if the man knows that his face and name are listed on the Web site. He may not.

I complain about my ex-boyfriend a lot, but not in a defamatory way (as I outlined: opinion about ex-bf's music taste: constitutionally protected. Saying falsehoods that injure ex-bf's reputation: defamatory). Still, I am troubled by this. While I support my single sisters' access to the truth, this is likely to be challenged as unprotected speech on a number of grounds:

  1. Libel. Libel consists of the publication of defamatory matter by written or printed words. A defamatory statement is "of or concerning the plaintiff" where it holds him up to scorn or ridicule in the eyes of asubstantial number of respectable people in the community. If the statements are false, one who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to liability to the other even if no special harm results from the publication (e.g., no dates, break-up, divorce). In such cases, damage to reputation is presumed. Slander per se: No special harm needs to be proven if the false statements impute 1) a criminal offense, 2) a loathsome disease, 3) reputation regarding his business, profession, office, etc., 4) serious sexual misconduct. If the statements are true: one who publishes a statement of fact is not subject to liability for defamation if the statement is true. However, there's still:
  2. Invasion of the Right to Privacy. ONe who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public. Liability may attach even if the statement or publication is true.
  3. Publicity placing person in False Light: liability if 1) false light in which other was placed would be highly offensive to a reasonable person, and 2) there is publicity

This article seems to be saying that women are outing guys as married and thus philanderers (if true, not defamatory, since marriage is a public record). But what I'm concerned about is outing people with sexually transmitted diseases, particularly HIV-AIDS. That would be an incredible invasion of privacy. That's the responsibility of your local Health and Human Services to contact past/present partners--not some internet message board that broadcasts such information for all to see. And if you think there's a public interest argument for broadcasting STD information (although constitutionally, I don't think they win the balancing test with privacy), there are other private facts that can be broadcast. Non-communicable diseases, say, like cancer, mental illness (especially non-threatening versions, as in not violent schizo, but just a little crazy). If you don't want other people to broadcast such stuff about you, don't broadcast it about others. I know a lot of my analysis eventually breaks down to "do unto others as you would have done to yourself," but seriously, and I say this as a Buddhist--haven't y'all learned that by now?

Also, some of these outings/complaints have to deal with the man's parsimony--saying he's cheap, in other words. Parsimony is relative, and it may be construed as a matter of opinion--but it could impact reputation to be thought of as cheap, stingy, etc. I don't know if actual harm can be proved, other than that it reflects on income and status. I mean, I could be thought of as parsimonious. I won't spend more than $60 on shoes, but I've spent $500 on books in a four-month period. I'll also buy insanely expensive "reading tools" from Levenger. I'll buy makeup from the department store, but I get $10 haircuts. And I eat out only twice a month (and only socially), just because I think if you can make it, you shouldn't buy it . So given my cheap shoes, my tendency to shop at Old Navy and The Gap with "upscale" being Banana Republic, and my "I know what braised veal cheeks wrapped in panchetta in truffle sauce are but I'm not paying for it" attitude, I guess you could call me cheap, or (let's call it what it is) "broke-ass." And if I were a real lawyer person, it doesn't sound too good with the martini crowd. So if I cared about that, I'd take offense at being called publicly what I admit privately to being--a cheap bastard. Also, statements of opinion about one's profession may be defamatory. "He's an unscrupulous doctor/lawyer/businessman," for example, without proof of truth, is slander per se. And people do this all the time, making ad hominems about the other's quality of work, work ethic, academic pedigree, qualifications, performance, etc. It's one thing if you're the HR director--quite the other if you're the ex making statements that might impact the other's employment.

So while I support finding out the truth about the men you date or meet online, and perform Google checks myself to make sure the boy who said he graduated from School X didn't actually graduate from Prison Y, I'm not so sure I'd support this kind of disgruntled free-for-all. I'm not saying that the women are probably catty, bitchy liars. I hate people who think that most rape complaints are "false" and "vindictive," for example, which is the same accusation you could make of this message board. I'm saying that for principled legal reasons, I think this is a bad idea, and may fall under unprotected speech. If such statements are false, publish private facts about a person, or impute disease/criminality/professional irresponsibility to the person, I don't think they should be made.

You still think that there's absolute free speech rights? Go ahead and say so.